“I riro whenua atu me hoki whenua mai”: The return of land and the Waikato-Tainui raupatu settlement MARTIN FISHER Abstract The Waikato-Tainui raupatu settlement signed in 1995 focused on the return of land to address grievances related to the war and confiscation that marked the Waikato region in the 1860s. Negotiations regarding the return of land focused on the tribal entity into which lands would be vested, which specific lands they would be returned and in what legal form they would be utilised. The negotiations regarding the return of land to Waikato-Tainui represented a situation under which the Crown’s power was reinvented rather than weakened. Compromises were made and some land was returned but it was under the Crown’s framework and overall control. Introduction The importance of land to Māori has been paramount throughout New Zealand’s history. In the Māori version of the Treaty of Waitangi, Article Two guaranteed to Māori “te tino rangatiratanga,” what Claudia Orange describes as the unqualified exercise of their chieftanship, over “ratou w[h]enua o ratou kainga me o ratou taonga katoa,” their lands, villages and treasures. The English version of Article Two of the Treaty of Waitangi guaranteed to Māori “the full exclusive undisturbed possession of their Lands and Estates.”1 The intimate connections between the people (“tangata”) and land (“whenua”) have been signified in a number of different Māori proverbs such as: “Te toto o te tangata he kai, te oranga o te tangata he whenua” (“The lifeblood of a person is derived from food; the livelihood of a people depends on land”), and “Toitu he whenua, whatungarongaro he tangata” (“The land remains after the people have gone”).2 Paerau Warbrick has commented that to Māori the “whenua … is linked with people and the greater cosmos, and incorporates the corporeal as well as the ethereal.”3 Unsurprisingly, claims to land have been a central part of the New Zealand Treaty settlement process. Within the framework of the importance of land to Māori, the return of land was a key component in Waikato-Tainui’s raupatu (confiscation) Treaty settlement (1989-1995) that is embodied in the principle that governed their negotiations for decades: “I riro whenua atu me hoki whenua mai”—as land was taken so land must be returned. For Waikato-Tainui the confiscation of their lands was a vivid symbol of the way in which their mana whenua or authority over land was directly challenged. This article argues, much like Michael J. Stevens does in relation to the Ngāi Tahu settlement, that the negotiations regarding the return of land to Waikato-Tainui represented a situation under which the Crown’s power was reinvented rather than weakened.4 Compromises were made and some land was returned but it was under the Crown’s framework and overall control. The return of land was marked by Waikato-Tainui’s efforts to ensure the land could not be alienated again in the future. In 1991 and 1993 two former military bases at Hopuhopu and Te Rapa were slated for return to Waikato-Tainui. Although Waikato-Tainui occupied both bases earlier, they were not legally transferred until settlement legislation was passed in 1995.5 Waikato-Tainui sought legal mechanisms to retain returned land such as the restoration of land under a form of inalienable customary title rather than fee simple title. Waikato-Tainui also sought the return of lands without marginal strips.6 Waikato-Tainui’s settlement was ultimately restricted to grievances solely regarding the confiscation of land and was not marked by the environmental management issues that at times dominated nearly all other negotiations since 19 Journal of New Zealand Studies NS23 (2016), 19-36 they were the first iwi-based negotiation to complete a settlement. Nonetheless Waikato-Tainui attempted to have Department of Conservation (DoC) land included in its settlement, or at least a co-management role with DoC for the land in the Waikato-Tainui rohe, but there was similar opposition both within and outside government from conservation interests. In addition to conservationists, Waikato-Tainui also had to contend with other third-parties—former owners of Crown land taken under the Public Works Act—who delayed the return of Crown land in the Waikato-Tainui settlement, but that is an issue of some complexity that will have to be addressed in detail elsewhere. This article will analyse the negotiations regarding the return of specific lands at Hopuhopu and Te Rapa as well as Department of Conservation lands, the establishment of Waikato-Tainui’s land-bank, and the legal form in which land would be returned. Although the Crown had overwhelming control of the wider process, Waikato-Tainui were able to regain some lands and enhance in some ways their rangatiratanga or self- determination. The context of the negotiations Waikato-Tainui sought to halt the alienation of Crown lands in its tribal region in the wake of the State Owned Enterprises Act 1986. In the NZMC v. Attorney-General case the New Zealand Māori Council charged that the State Owned Enterprises Act 1986 breached the principles of the Treaty of Waitangi because the Act enabled the government to privatise land and assets, which would then become unavailable for use as compensation for Māori historical grievances. Sir Robin Cooke and his fellow justices in the Court of Appeal agreed that the legislation did breach the principles of the Treaty and forced the government to negotiate with Māori leaders to develop some safeguards that would protect land and assets from sale.7 The result was the Treaty of Waitangi (State Enterprises) Act 1988 which provided clawback mechanisms, called memorials, for land and assets that were subject to Māori claims, but their effectiveness in halting the alienation of land was in no way immediate.8 During Waikato-Tainui’s scoping negotiations in mid-1989, Crown officials were informed by Waikato-Tainui negotiators that the continuing alienation of Crown land was a primary concern. The Treasury official involved in the scoping negotiations attempted to develop a system under which Waikato-Tainui would receive a warning regarding the pending alienation of Crown land and potentially halt the sale. If Waikato-Tainui sought the inclusion of the Crown land in their settlement, it would be placed in a land-bank for future use. Unfortunately there was no support for such a system for Waikato-Tainui from senior Crown officials although it is unclear what the specific rationales were. Waikato-Tainui’s land-bank was not established until early 1993. Although the land-banking process was an innovative method to protect against the alienation of Crown land, the nature of the process could be frustrating for Waikato-Tainui as there were limits to the amount of land and types of land allowed in each land-bank. Damian Stone has rightly commented that Crown properties available for land-banking often consisted of the least profitable and hence least desirable Crown lands available.9 In addition, as Alan Ward has noted, it was “not easy for claimants to discern, from the information provided, what was important land” in terms of its potential profitability.10 Since Waikato-Tainui wanted all land returned there were tensions around identifying which specific lands would be returned. At times, less profitable lands such as urupa may have been sought. Many of the issues surrounding the development and operation of Waikato-Tainui’s land-bank emerged from the Crown’s overriding control of the land-banking process in setting the kind of lands that would be available and the total cap on each land-bank. Methodology Research for this article was enabled by the Office of Treaty Settlements (referred to as OTS in the references) in Wellington, which provided access to its archives. These sources were 20 Journal of New Zealand Studies NS23 (2016), 19-36 supplemented by the collections held by the Waikato-Tainui College of Research and Development located at Hopuhopu near Ngaruawahia. In addition, Sir Douglas Graham, the Minister of Treaty Negotiations for most of the 1990s, provided unrestricted access to his own personal files held at Archives New Zealand (Archives NZ), Wellington. As a historian employed by neither the Crown nor Waikato-Tainui, I have used all the material available to me. Throughout the research nearly all Crown officials are unidentified. Officials do what their job description requires them to do—give advice to the Minister and the government and once decisions are made by Cabinet, implement those decisions. Any letter, memorandum or paper that was signed out to the Minister went through many hands and had managerial input and reflected an institutional view not the personal views of the authors, which is one of the reasons that almost all Crown officials have remained anonymous. Ministers, Secretaries of Ministries, principal negotiators and Waikato-Tainui advisors (where they have agreed to be named) have not been kept anonymous. Generally, documents were split into approximately four different formats: memoranda, briefing and Cabinet papers, correspondence, and minutes of meetings. These primary sources were supplemented by contemporary newspapers such as the Evening Post, Waikato Times, New Zealand Herald, the Dominion and The Press, and periodicals such as The Listener and North and South. For the official monthly meetings, minutes were produced by both the Crown and the respective claimant negotiating group. These were subject to revisions from both sides and an agreed set of minutes were produced for each meeting. This set of minutes was the Crown’s official record of the meeting. Waikato-Tainui also produced their own record of the minutes of the meeting. These were not subject to revision by the Crown and were often not shared with the Crown unless there was a substantial disagreement over a negotiation issue or over the accuracy of the Crown’s version of the meeting.